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HomeMy WebLinkAbout2003-3587.Prevost et al.06-12-15 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Nj ~ Ontario Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 GSB# 2003-3587,2004-0211 UNION# 2003-0411-0093,2004-0999-0005 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Prevost et al.) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer Owen V. Gray Vice-Chair Ed Holmes Ryder Wright Blair & Holmes LLP Sean Kearney, Senior Counsel (to October 31,2006) Simon Heath, Counsel (from and after October 30,2006) Ministry of Government Services October 30 & 31, 2006. 2 Decision [1] This order confirms, completes and elaborates certain directions gIven on October 31, 2006, as to the delivery of written particulars, documents relied upon and other information prior any further hearing dates in this matter. I begin by describing the context in which I am making this order. The Grievances [2] On or about September 30, 2003 the union filed a group grIevance (GSB File 2003-3587) on behalf of a number of employees at the Ottawa Carleton Detention Centre ("OCDC"). The grievance stated We grieve Article 10 and COR Bargaining Unit Article COR 7.1. SETTLEMENT DESIRED Full Redress. Full compensation. COR 7.1 of the collective agreement provides that "The present practice for rest periods in each shift shall be maintained." Article 10 of the Central Agreement deals with Compressed Work Week Agreements. At all material times the parties had a Compressed Work Week Agreement ("CWWN') covering OCDC, which provided for one "paid meal break" and two 15 minute "paid rest periods" in each 8 or 12 hour shift. The CWW A signed in 1992 provided that the meal break would be 20 minutes. At some point thereafter the parties agreed that the paid meal break would be 30 minutes, although they do not agree when that was. [3] On or about February 19, 2004 the union filed a union grievance that stated The employer has violated specifically, but not exclusively, Article COR7 of the Collective Agreement in regards to rest periods for employees within Correctional Institutions and Probation and Parole Offices. SETTLEMENT DESIRED That the employer be directed to abide by the language contained within the Collective Agreement. Full redress. 3 The Context - Pre-Grievance [4] Minutes of the Staff Relations Committee at OCDC record that in a meeting on January 29, 2003 the union told the employer that members of the correctional staff were complaining that they were not receiving any relief for breaks and had to eat at their posts. The minutes of that meeting, which the employer agrees are accurate and complete, record the following management response: Management: we are currently looking at ways to accommodate staff for breaks with our new staffing formula. With the opening of new Segregation and Health Care Unit in March and deployment of additional auxiliary staff, we will be in a better position to provide breaks. [5] Minutes of the Staff Relations Committee at OCDC also record that at a meeting on March 13, 2003 the union complained to the employer that problems with breaks were still ongoing. Those minutes, which the employer agrees are accurate and complete, record the following management response: MANAGEMENT advises the UNION that this issue will be resolved once the new schedule is in place. [6] Minutes of the institution's Employee Relations Committee meeting on August 13, 2003, which the employer agrees are accurate and complete, record that there was the following exchange at that meeting: 4. Breaks > UNION requests that breaks be given to smokers and non-smokers. With the new schedule no extra staff available for relief. > MANAGEMENT agree that all staff be allowed to take breaks. Staff are reminded to notify the Operational Manager before leaving their post and have a replacement staff available. The Context - Post Grievance [7] A May 15, 2004 Memorandum of Understanding of the parties concerning the OCDC provided, in part, as follows: 15. Management recognizes the entitlement of staff to meal breaks and rest periods. 16. The parties agree to conduct a review of the operational schedule to facilitate, where applicable, paid meal breaks and paid rest periods, and to ensure that all such entitlements are met. 4 17. Management is committed to mutual discussions with the Union, in order to determine a format for the scheduling and utilization of meal breaks. [8] It is common ground that there was a meeting of the parties on December 14, 2004, at which there were further discussions about how meal breaks and rest periods and related issues could be handled. The Partial Settlement [9] In late spring 2005 these two grievances were scheduled for hearing before me on September 1, 2005. On that hearing date the parties entered into Minutes of Settlement. The pertinent portions of those Minutes are these: 1. The parties agree that the correctional staff at Ottawa-Carleton Detention Centre are entitled to one paid meal break (of 30 minutes duration) and two paid rest breaks (of 15 minutes duration each) during the completion oHull shifts at OCDC. 2. The parties agree that a protocol and paid breaks will be implemented forthwith to ensure that correctional staff receive the paid breaks specified in paragraph 1. 3. The parties further agree that the only outstanding issue with regard to the grievances is monetary claims by the various individual grievors. The parties agree to attempt to resolve that issue at the local level. However, in the event that this outstanding issue cannot be resolved, either party is at liberty to pursue the matter before the GSB. ... 5. The parties agree that this settlement is in no way an admission of liability on the part of any of the parties. [10] Having received a request that it do so, on November 1, 2005 the Board rescheduled these two grievances for hearing before me on February 23, 2006, to deal with the matters referred to in paragraph 3 of the Minutes of Settlement. By letter dated January 11, 2006, union counsel gave notice that the union would also be requesting a remedy for the alleged breach of paragraphs 1 and 2 of the Minutes of Settlement, which it said the employer had still not implemented. 5 The Issues [11] During his opening statement on February 23, 2006, union counsel recited, with elaboration, the history noted above in paragraphs [2] through [9]. He stated that the union was seeking a) a declaration that the employer breached paragraph 2 of the Minutes of Settlement of September 1, 2005; b) an order directing the employer to forthwith implement a protocol and paid breaks to ensure that correctional staff at OCDC receive the paid breaks to which it has agreed they are entitled; c) in view of the history of repeated unfulfilled promIses III this regard, a compliance order in the nature of a mandatory injunction requiring that the employer abide by its obligations to OCDC staff with respect to meal breaks and rest periods; and, d) compensation for each person who worked on the correctional staff at OCDC at any time during the period covered by the grievances, for each paid rest break or paid meal break that the employer failed to provide, for the period covered by the original grievances, as contemplated by paragraph 3 of the settlement, as well as the period following the settlement. As for the amount of compensation claimed, the union's counsel said the union's claim was that for each period during which an officer ought to have been but was not duty free, s/he should receive additional pay at the overtime rate, since that additional work was in addition to the full scheduled shift worked. The union asserted, he said, that no correctional officer at OCDC received any of the rest or meal breaks to which s/he was entitled during the entirety of the period commencing prior to the filing of these grievances and continuing to date. Accordingly, it was the union's position that each such officer should receive one hour's pay at the overtime rate for each day he worked a full shift during that entire period. [12] In his opening, employer counsel noted that the Ministry's institutions around the province have developed a variety of practices concerning the treatment of breaks, 6 including whether the breaks are paid or not. He said that prior to 2003 OCDC had not had a practice of formally and specifically scheduling breaks at predetermined times for each member of correctional staff. In 2003 and following there had been good faith efforts by management to negotiate with the union a new way of scheduling so as to treat breaks in that manner, he said, including efforts to negotiate the protocol contemplated by the Minutes of Settlement of September 1, 2005, but regrettably those efforts had been unsuccessful. Both parties bore some responsibility for that failure, he said. [13] Employer counsel also asserted in his opening that claimants were simply not entitled to compensation for any alleged breaches of their rights to paid rest and meal breaks that may have occurred prior to September 1, 2005 or, alternately, prior to January 1, 2005. (He later acknowledged that paragraph 3 of the Minutes of Settlement expressly kept alive whatever claims the claimants may have had at that point for compensation for prior alleged breaches of their rights to paid rest and meal breaks.) He said that the compensation sought by the union would be a "windfall" for itself and its members, because if there had been breaches of any of the claimants' rights to paid rest and meal breaks the claimants had only suffered minimal damage or prejudice. He added that throughout the period in question the claimants had been provided with the coverage and relief necessary to enable them to take the paid breaks to which they were entitled. There had been oral communications by management to union people that this coverage and relief was available, he said, and there had been an understanding among correctional staff that they were to arrange coverage and relief among themselves. Accordingly, it was the employer's position was that in each case each claimant had either taken the full break to which s/he was entitled or had chosen not to do so. [14] It followed, employer counsel stated, that even if the employer was solely responsible for the failure to achieve a schedule that expressly included scheduled breaks for meals and rest times, no actual loss had resulted from that failure and, so, there could be no liability for damages for that alleged breach of the Minutes of Settlement. Employer counsel made it clear that because the bases for these compensation claims were fact specific for each claimant and each break allegedly denied, the union would be required to establish through evidence the compensation 7 claim for each and every break that each and every claimant said had been denied to him or her. [15] As for the allegation that the claimants had at all times been provided with the coverage and relief necessary to enable them to take the paid breaks to which they were entitled, employer counsel further asserted that there had been oral communications by management to union people that this coverage and relief was available, and that there had been an understanding among correctional staff that they were to arrange coverage and relief among themselves. [16] Concerning this last point, the umon alleges that officers were told by management that they could have a break if and only if they arranged for their own relief, and that it had made it clear this was not satisfactory. The evidence-in-chief of the union's first witness on this point is that when he asked supervisors for relief so he could take a rest or meal break he was told to first find someone to relieve him, and when he responded by asking where he was supposed to find such relief they did not answer his question. The hearing to date [17] Following the opening statements, the union's first witness was Marc LaRocque. At all times material to these grievances Mr. LaRocque had been President of the Local Union at OCDC, and he still was when his testimony began. His examination-in-chief continued on the next hearing day, October 30, 2006, by which time he was no longer the President of the Local Union. His cross-examination commenced but was not completed that day. [18] During that second hearing day umon counsel noted, and employer counsel confirmed, that it was the employer's position that I should not give weight (as proof of the truth of its contents) to any hearsay evidence from Mr. LaRocque about what other officers had told him concerning their having been denied or not provided breaks, and that evidence in support of claims for compensation for breaks allegedly denied or not provided should come from those with personal knowledge of the relevant events: presumably, the complainants themselves. Union counsel noted that further hearing 8 dates would be needed to hear that evidence, and asked that those hearings be cond ucted in Ottawa. [19] The following day, October 31, 2006, was spent in an unsuccessful attempt to resolve this and other matters. Near the end of that day the hearing resumed for the purposes of a discussion with counsel about the matters addressed in this order. Submissions were thereafter sought from counsel on the deadlines for the steps to be taken. The deadlines imposed here reflect what the union proposed; despite repeated requests that the employer provide submissions, none were received from it within the time frame stipulated. The Order and Reasons for It [20] The number of complainants is very large. During his opening, employer counsel said he understood that there were about 220 complainants. Given the number of claimants and the length of time now covered by the claims, the total amount claimed here is well in excess of a million dollars, and is continuing to grow. This amount, however, is simply the sum of tens of thousands of small claims, each of which may have a distinct factual basis, for either 15 or 30 minutes pay at overtime rates (just over $10 and $20, respectively, at current rates), plus interest from the pay date referable to each claim. [21] It is apparent from the submissions and evidence to date that the likelihood of anyone complainant's having lost or been denied the opportunity of a break because relief was unavailable to him or her may well depend, at least in part, on where within the institution and at what task the claimant was working during the time when the break should or could have occurred. For each break allegedly denied the pertinent time frame is necessarily broad if there were no set times for breaks. The union is not in a position to say where any of the complainants was working, or whether they were working, on any particular day in the more than three year period now in issue without first having the benefit of the employer's records in that regard. [22] It is also apparent that in alleging that he never had any of the meal or rest breaks to which he was entitled, Mr. LaRocque would say that he did not have a rest 9 break to which he was entitled whether on that occasion he had no break at all, or a break of less than 15 minutes, or a break of 15 minutes that was not duty-free for the entire time. The same range of circumstances would apply (substituting 30 minutes) for his claim about denied meal breaks. For him (and the union), a meal break would not be the meal break to which he was entitled if it was not 30 minutes in duration and duty-free throughout, even if he was able to retrieve, heat (if necessary) and eat food that he had brought with him to work. Even if anything in this range of circumstances is a breach of the employer's obligation to provide breaks, it is very much open to the employer to argue that the appropriate remedial response to, for example, a complainant's having been deprived of any opportunity whatsoever to take any break or to eat a meal during the entire shift might be different from the appropriate remedial response to, for example, a complainant's having been required to resume duties a few minutes before the end of an otherwise duty-free half hour meal break. [23] Mr. LaRocque did not make contemporaneous notes about his experIence III taking breaks, seeking to take breaks or asking coworkers or supervisors for relief to take breaks, nor about occasions when relief was provided or available for some but not all of the period for which he was entitled to a break, nor (as to meal breaks) about whether or not he ate a meal and, if the complaint is that this was during a period of less than 30 minutes or one that was not duty free, the actual length of the break, the extent of the duties allegedly imposed on the claimant during the break. As matters presently stand, these and other pertinent considerations are very much in issue for every shift of every claimant for whom the union seeks compensation over the more than three year period to which the claims relate. If Mr. LaRocque did not keep notes of these things despite his having been the moving force behind these grievances, then it seems entirely possible that few to none of the other complainants did so either. Likewise, there has been no indication thus far that any member of management kept notes about whether or how Mr. LaRocque or any other employee got breaks (as it alleges they did) during the period since these grievances were filed. [24] In the circumstances, hearings with respect to these claims should not proceed further, in my view, without first ascertaining what is alleged by or on behalf of each claimant about the circumstances of each allegedly denied break, which of those allegations is actually disputed by the employer and what further documents, if any, 10 are relied upon by either party in that regard. To proceed without knowing in advance what is alleged and what is in dispute would likely result in numerous complainants being, in effect, interviewed and then examined for discovery in the witness box. Consequently, much hearing time would almost certainly be wasted, both through the hearing of testimony that is unnecessary because it relates to facts which turn out to be undisputed, and through the frequent adjournments that may reasonably be sought as allegations emerge by which employer counsel can fairly claim to be caught by surprise. [25] Accordingly, by November 27, 2006, union counsel shall provide employer counsel with the names of all of the individuals for whom the union is seeking compensation in these matters. Those individuals are hereafter referred to collectively as "the claimants." [26] By January 22, 2007, the employer shall produce for inspection by union counsel, or provide union counsel with copies of, any records (in whatever form, whether paper or electronic) in the possession, custody or power of the employer which show what days were worked at OCDC by each claimant in the period September 1, 2003 to November 27, 2006 and/or what the claimant's work assignment(s) was (were) on each such day. If there are any such records for which the employer claims privilege that it objects to produce on that ground, or if any such records once were but are no longer in the possession, custody or power of the employer, then as to those records the employer shall instead provide a written description of those records and explanation for the employer's refusal or inability to produce them. [27] Each of the parties shall thereafter provide the other with full written particulars of the material facts on which it relies in this matter, in accordance with the timetable hereafter set out. Each party shall also provide the other with copies of any documents or records (physical or electronic) in its possession, custody or power (and, in the case of the union, any such documents or records in the possession, custody or power of any claimant) on which that party may wish to rely in these proceedings. This direction does not require that a party deliver copies of documents or records that it has already copied to the other in the course of and expressly for purposes of these proceedings: as to such documents it will be sufficient to unambiguously identify in writing the previously delivered documents on which the party intends to rely. 11 [28] With respect to each act or omISSIOn alleged therein, each party's written particulars shall state what it says was done or not done, when, where, by what means and by whom, identifying by name any individual whose actions are being attributed to an organization. Conclusory statements based on unparticularized allegations of fact are not sufficient. The allegations of fact set out in a party's particulars should be sufficiently comprehensive that it would be unnecessary for that party to call any evidence if the opposite party were to admit that all of those allegations of fact were true. It is not necessary for a party to include in its written particulars a description of the evidence by which it will seek to prove any of the allegations of fact set out, although in view of paragraph [33] below it may chose to do so. It is not necessary for a party to identify in its particulars any witness to events in question unless the presence of that particular person at that event is a material fact on which the party relies, although in view of paragraph [33] below it may chose to do so. [29] Without limiting the generality of the previous paragraph, as to each claimant the particulars to be delivered by the union should identify each date for which compensation is claimed for that claimant. As to each such date, the particulars should indicate where in the institution the union alleges the complainant was working at the time breaks were denied that day. As to each break allegedly denied on that date, the particulars should indicate in what respects it is alleged that the break provided or taken, if any, failed to satisfy the complainant's full entitlement. Where it is alleged that a break was taken but was too short, the particulars should indicate the length of the break. Where it is alleged that a break not duty free, the particulars should indicate the nature of the duties imposed on that occasion and the means by which the employer imposed them (e.g., a particular standing order, a contemporaneous oral or written direction given by an identified supervisor, and so on). As to a meal break, the particulars should also indicate whether it is alleged that the complainant was denied the opportunity to obtain or eat a meal altogether. Where the particulars of a number of claims are substantially similar in all pertinent respects (work location, duration of break offered or taken, nature of duties imposed during the break and the means and person by which duties were imposed and, as to meal breaks, whether a meal was eaten or the opportunity to do even that was denied) other than the complainants and dates to which they relate, those particulars need not be repeated, but may be asserted as 12 applying to those specified complainants and dates. As to any claimant and date for which the union makes a claim but is unable to provide particulars, it should indicate why cannot do so and on what factual basis it nevertheless asserts a compensation claim for that date for that claimant. [30] The particulars and productions shall be delivered III accordance with the following timetable: a) On or before March 30, 2007, the union shall deliver to employer counsel its written particulars of the factual allegations on which it relies, and copies of any (additional) documents or records upon which it may wish to rely. b) On or before May 31, 2007, the employer shall deliver to employer counsel written particulars that explicitly identify the allegations of fact in the union's particulars which the employer does not dispute, if any, and the allegations of fact which it disputes and, as to the allegations which it disputes and any other issues it intends to raise, set out the allegations of fact on which it relies in that connection, together with copies of any (additional) documents or records upon which it may wish to rely. c) On or before June 30, 2007, the union shall deliver to employer counsel written particulars of any allegations of fact on which it relies with respect any issue first raised by the employer in its particulars, together with copies of any (additional) documents upon which the union may wish to rely in that regard. d) Each party shall file a copy of its written particulars with the Board within one week after the particulars are delivered to counsel for the opposite party. [31] A party who fails to produce a document or record or to provide particulars of an allegation in accordance with this order may not introduce that document or record or present evidence about that allegation in these proceedings without leave. [32] The provisions of this order with respect to production of documents and records do not preclude an application by either party for an order requiring the production by the other of additional documents. 13 [33] It may be that a further step will be desirable after particulars and productions are exchanged and before the hearing resumes, bearing in mind that evidence with respect to any disputed allegations will likely come from claimants and supervisors who are called upon to remember day to day occurrences over a period stretching back over more than three years without the benefit of their having taken any contemporaneous notes. Further economy and expedition in the hearing of the dispute may be achieved if at that point union counsel provides employer counsel with will-say statements setting out what each of its intended witnesses will claim to recall seeing and hearing that is relevant to the issues in dispute as defined by the particulars, bearing in mind that their testimony in that regard would be given after undertaking to tell the truth, set out in sufficient detail that they could stand in the place of the witness's testimony in chief. Employer counsel would then indicate which of the will-say statements he is prepared to have stand as evidence without cross-examination and which witness he requires to be produced for cross-examination. Hearings could then be scheduled, possibly at the institution, to have each of the witnesses identified by counsel attend to expeditiously confirm the truth of his or her will-say statement and be cross-examined on those aspects of it that the employer challenges. After those witnesses have been heard and the union has closed its case, employer counsel would then provide will-say statements for each of the witnesses he intends to call, to which union counsel would respond by indicating which of the statements he is prepared to have stand as evidence without cross-examination and which witness he requires to be produced for cross- examination, and the hearing would then continue with those witnesses. [34] It is possible that after the issues in dispute are defined by the exchange of particulars and productions provided for in paragraphs [25] through [30l, the range or nature of those issues will warrant modifying or eliminating the disclosure requirements contemplated in the preceding paragraph. Accordingly, after the exchange of particulars and productions is complete I will conduct a telephone conference with counsel to consider whether and to what extent those requirements should be modified and on what timetable any "will say" statements will be delivered and whether it is possible at that point to set further hearing dates. I would expect that by then the union, having made the investigation necessary to provide comprehensive particulars, will have the information necessary to draft "will say" statements for its 14 intended witnesses and that the question would simply be whether the incremental effort involved in reducing that information to written, deliverable form would be commensurate with the expedition that would result from thereafter treating each statement as that union witness's testimony in chief. [35] The deadlines set out in this order may be altered or extended by agreement of the parties Dated this 15th day of December, 2006. Amended February 12, 2007 on consent of the parties.